Protect Head of Policy Andrew Pepper-Parsons attended conference Exposing Secrets: the past, present and future of U.S. National Security Whistleblowing and Government Secrecy which brought together academics, legal experts, journalists and a few US national security whistleblowers to debate the issues.
The two-day conference on US national Security whistleblowing aimed to take a historic look at national security whistleblowing to see if fresh perspectives could be found.
Why does history matter? For me this was an interesting approach as the cases of prosecutions of national security whistleblowers are low in both the US and UK. Five in the US since 2015, and the last prosecution brought to trial in the UK was 2006.[1] The legal frame work in both countries creates an offence with no public interest defence. Also in the US and the UK, the classification of secrets is held by the executive (in the UK this would be Ministers, in the US, the President) and no way challenge abuses and decisions over what should be classified.
This all creates a secret space where the intelligence community operates, where there is little information, especially in the UK, about how these agencies operate. On top of that we know from whistleblowing best practice in industries and sectors that are more open, that whistleblowing arrangements that lack an independent external route tend to be more flawed. A good example of an external route in the UK is the Financial Conduct Authority regulator which insists they are included as a route for whistleblowers to raise concerns with.
History lessons
History can show us the development beyond the cases that have been brought. Sam Lebovic, historian of American politics and culture, pointed out that the current system sets the rules of game of disclosing national security secrets between the government and the press but leaves the whistleblower out in the cold. The Government have strong legal powers to pursue whistleblowers who reveal information to the press, but these laws are not used against the press themselves, due to the First Amendment giving them a strong defence as a publisher. The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws which respect an establishment of religion, prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the right to peaceably assemble, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
Such protection is not available to the whistleblower who is left rather exposed, relying on the journalist to protect them as a source while also hoping the US Government doesn’t independently discover who they are. An interesting area of research would be to look at the development of these type of measures in the UK to understand how we got to our current legislation – for example it would be interesting to examine the historical development of the Official Secrets Act since it was first introduced in 1911.
Can journalists play a role?
Edward Snowden, the NSA whistleblower currently exiled to Russia, who skyped in to the conference, adds to this by stating that the current system is a reflection of the incentives in place for government. Their interest is to avoid political embarrassment rather than to hold the intelligence community to account. This informed his decision to use journalists rather than internal routes with an organisation because he had seen Thomas Drake and John Kiriakou both suffer costly legal fights and prison for using these mechanisms. Thomas Drake, a former senior executive at the National Security Agency, blew the whistle on massive multimillion dollar fraud, waste and abuse, the failure of 9/11, as well as the widespread violations of the rights of citizens through secret mass surveillance programs after 9/11. Former CIA analyst John Kiriakou was the first US government official to confirm that the US used waterboarding to interrogate terrorism suspects. In 2007, Kiriakou disclosed to ABC News the CIA’s waterboarding of Abu Zubaydah. In 2012, Kiriakou was charged and prosecuted for revealing classified information to the media and in 2013 was sentenced to 30 months in jail.
Snowden believes an independent panel of journalists should be used as an independent mechanism for decisions of disclosure. This is probably unworkable as journalists would be accused of being biased towards disclosure but Snowden is not wrong on wanting to create a more independent system.
The introduction of a public interest defence and an independent classification system is possible. The Tshwane Principles which is a set of global principles developed by civil society academics and practitioners on balancing the need for government’s to protect sensitive information against the public’s right to know. This is the best route to create a confidential rather than secret space for Government to operate when it comes to national security.
[1] US: https://www.theguardian.com/us-news/2015/mar/16/whistleblowers-double-standard-obama-david-petraeus-chelsea-manning and https://theintercept.com/2018/06/26/reality-winner-plea-deal/ UK: https://www.theguardian.com/media/2008/jan/09/pressandpublishing.freedomofinformation